It is provided in Ontario by the Mortgages Act, R.S.O. 1914, c. 112, s. 11, as follows:

11. The payment in good faith of any money to and the receipt thereof by the survivor or survivors of two or more mortgagees, or the executors or administrators of such survivor, or their or his assigns, shall effectually discharge the person paying the same from seeing to the application or being answerable for the misapplication thereof, unless the contrary is expressly declared by the instrument creating the security (v).

(t) R.S.O. 1914, c. 119, ss. 13 ff. This statutory vesting without conveyance was originally enacted in 1891 by 54 V. c. 18, the period mentioned being twelve months. The period was in 1902 extended to three years by 2 E. 7, c. 17.

(u) Added in 1918 by 8 G. 5, c. 20, s. 22.

A similar provision is embodied in the Trustee Act, R.S.O. 1914, c. 121, s. 26, the differences in wording being that the latter section omits the words "in good faith" and the words "unless the contrary is expressly declared by the instrument creating the security."

It seems impossible to reconcile these provisions, and therefore it is apprehended that in case of conflict the first one (in the Mortgages Act) must give way to the second (in the Trustee Act) (w).

There is nothing in the enactment just quoted which affects the general rule that payments to trustees must be made to all the trustees jointly, or on their joint receipt, or to their attorney authorized by them all to receive the money, though the receipt of one of several executors would be good (x).

In cases not covered by the statute the person paying money to the survivor of two mortgagees is still subject to the equitable obligation to see to the application of the money. The statute applies only to the payment of money and does not protect a mortgagor who, instead of actually paying the debt, enters into some different arrangement for securing it (y).

(v) This section is similar in terms to a provision contained in the English statute 7 and 8 V. c. 76. The English statute was, however, repealed by 8 and 9 V. c. 106, and four years after its repeal in England it was enacted in Upper Canada. See Dilke v. Douglas, 1880, 5 O.A.R. 63, at pp. 76, 77, where the reasons for the repeal of the statute in England arc stated and its meaning is explained.

(w) Armour, Real Property, 2nd ed., p. 215, referring to Boston v. Lelievre, 1870, L.R. 3 P.C. 157, at p. 162, where it was held that consolidated statutes must be construed collectively and with reference to one another, just as if they were sections of one statute instead of being separate acts.

(x) Ewart v. Snyder, 1867, 13 Gr. 55, at p. 57.

It is further provided by the Mercantile Law Amendment Act, R.S.O. 1914, c. 133, s. 4, as follows:

4.- (1) Where in a mortgage or an obligation for payment of money, or a transfer of mortgage or of such obligation, made after the 1st day of July, 1886, the sum, or any part of the sum, advanced or owing is expressed to be advanced by or owing to more persons than one out of money, or as money, belonging to them on a joint account, or where a mortgage, or such an obligation, or such a transfer is made to more persons than one, jointly, and not in shares, the mortgage money, or other money or money's worth, for the time being due to such persons on the mortgage or obligation, shall be deemed to be and remain money or money's worth belonging to those persons on a joint account, as between them and the mortgagor or obligor; and the receipt in writing of the survivors or last survivor of them, or of the personal representatives of the last survivor, shall be a complete discharge for all money or money's worth for the time being due, notwithstanding any notice to the payer of a severance of the joint account.

(2) This section shall apply only if and as far as a contrary intention is not expressed in the mortgage, or obligation or transfer, and shall have effect subject to the terms thereof.

An action for foreclosure may be maintained by the survivor of two mortgagees on a joint account (z).

Where a mortgagee of land has died without having entered into the possession or into the receipt of the rents and profits thereof, and the money due in respect of the mortgage has been paid to a person entitled to receive the same or such person consents to an order for the reconveyance of the land, the court may in certain circumstances make a vesting order (a).

(y) Dilke v. Douglas, supra. In -any case it appears that in view of the present provisions of the Registry Act even in the case of actual payment the surviving mortgagee cannot alone execute a discharge which upon registration will operate as a reconveyance. As in the case of the death of a sole mortgagee or of both or all of two or more mortgagees, the personal representatives of the deceased mortgagee or mortgagees must join in executing the discharge. See chapter 19, Discharge or Reconveyance, Sec. 185.

(z) See chapter 24, Action for Foreclosure or Sale, Sec. 233.

In case of a bequest of a mortgage indebtedness to the mortgagor, the executors may be compelled to discharge the mortgage before payment by the mortgagor of his other indebtedness to the estate (b).